Source · Select Committees · Human Rights (Joint Committee)
Recommendation 8
8
Rejected
135.
Conclusion
135. The denial of a remedy for unlawful detention also risks violating Article 5(5) and Article 13 ECHR (the right to an effective remedy). If individuals have been detained pending deportation between Stage 1 and Stage 2 171 UK Home Office, ‘Border Security, Immigration and Asylum Bill: ECHR Memorandum’ (HO, 2025), para.131 172 Border Security, Asylum and Immigration Bill, Impact Assessment, paras 125–126 173 Medical Justice and Bail for Immigration Detainees, para 24 174 Law Society of England and Wales, para 24 175 UK Home Office, ‘Border Security, Immigration and Asylum Bill: ECHR Memorandum’ (HO, 2025), para.138 49 deportation decisions without any lawful basis, as appears to be the case, then such individuals have a right to claim compensation. Clause 41 would remove the ability to make such claims.
Government Response Summary
The government rejects the committee's concern, asserting that Clause 41 clarifies existing detention powers, complies with Article 5(5) ECHR, and does not contravene Article 5 more broadly, thus negating a freestanding right to compensation for past detentions.
Government Response
Rejected
HM Government
Rejected
Clause 41 of the Bill clarifies the existing statutory powers of detention where the Home Office is considering whether deportation is conducive to the public good and consequential amendments to existing powers to take biometrics and searches upon being detained for this purpose. While it remains the Home Office’s position that the current detention power is lawful, this amendment provides greater legal clarity regarding its application. Clause 41 expresses these powers as the Home Office has always understood them to operate. Without retrospective effect, individuals previously detained could challenge the lawfulness of their detention. Such claims risk undermining the integrity of past deportation proceedings and frustrating future deportation proceedings. The retrospective clarification is necessary to ensure continuity in immigration control and public protection. The Home Office already detains individuals at the first stage of deportation consideration. Clause 41 is not expected to increase the use of detention powers but is intended to remove ambiguity and ensure that existing practices are legally robust. Therefore, it is entirely right that these provisions apply retrospectively. The Government considers that the measure complies with Article 5 ECHR. Article 5(1)(f) specifically provides for “the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition”. Any interference with Article 5 is justified as it is in accordance with the law and proportionate to achieve a legitimate aim. The clause clarifies the statutory basis for the current use of the power and there is a strong public interest in not disrupting the detention power for the purposes of effective immigration control and public safety. There are some cases where the power to detain pending deportation is necessary because of a real and significant national security risk where no alternative detention power exists. Article 5(5) ECHR states “everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation”. It is the Government’s position that the clause complies with Article 5(5) because there is no contravention with Article 5 more broadly and therefore no freestanding right to compensation (see above). The same rationale applies as regards remedies under Article 14 ECHR.